Gonzalez v The Australian Capital Territory (Discrimination)
[2021] ACAT 13
•25 February 2021
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
GONZALEZ v THE AUSTRALIAN CAPITAL TERRITORY
(Discrimination) [2021] ACAT 13
DT 39/2020
Catchwords: DISCRIMINATION – application to tribunal to make an order to give effect to a conciliation agreement – tribunal has no power to rectify the agreement or set it aside – orders made giving effect to the agreement
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 7, 55A
Evidence Act 2011 s 131
Human Rights Commission Act ss 62, 66
Cases cited:Codelfa Construction Pty Ltd v State Rail Authority of NSW [1982] HCA 24
Tribunal: Senior Member B Meagher SC
Date of Orders: 25 February 2021
Date of Reasons for Decision: 25 February 2021
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) DT 39/2020
BETWEEN:
CAROLINA GONZALEZ
Applicant
AND:
THE AUSTRALIAN CAPITAL TERRITORY
Respondent
TRIBUNAL: Senior Member B Meagher SC
DATE:25 February 2021
ORDER
The Tribunal orders that:
The respondent is to recredit to the applicant 238.5 hours of personal leave, being 128.25 hours additional to the 15 days already agreed to be recredited.
………………………………..
Senior Member B Meagher SC
REASONS FOR DECISION
This matter arises from a conciliation agreement that was entered into between the parties after conciliation at the ACT Human Rights Commission (ACTHRC). The conciliation agreement was lodged with the tribunal (ACAT) by the ACTHRC as provided for under section 62 of the Human Rights Commission Act 2005.
Section 55A of the ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act) allows a party to the conciliated agreement to apply to the tribunal to make an order “to give effect to the agreement”.
Ms Gonzales (the applicant) filed an application with the tribunal asking it to make orders under section 55A of the ACAT Act to give effect to the ACTHRC conciliation agreement.
The agreement is said to be with the Community Services Directorate, but the correct respondent is the Australian Capital Territory (ACT), and I made an unopposed order amending the name of the respondent on the day of the hearing (13 January 2021).
The hearing was by Webex. I admitted into evidence the application and annexed documents,[1] the applicant’s submissions and annexures dated 30 November 2020,[2] and the respondent’s submissions and statements of Ms Sabellico provided on 18 December 2020.[3] I had not located other filed documents by the applicant of 10 November 2020. I have since found them and they will be part of Exhibit A1. The applicant represented herself, and Ms Say of the ACT Government Solicitor represented the respondent.
[1] Exhibit A1
[2] Exhibit A2
[3] Exhibit R1
It seemed to me, bearing in mind section 7 of the ACAT Act, that the issues were such that there was no need for sworn testimony or cross examination. The reasons for this will become apparent. There was no resistance to this approach.
The agreement is as follows:
Conciliation agreement under section 62 of the Human Rights Commission Act
ACT HRC reference number: 191216845
Parties to the agreement
This agreement is between:
MS CAROLINA GONZALEZ
and
COMMUNITY SERVICES DIRECTORATE (as represented by MS ANNE-MAREE SABELLICO, A/g Deputy Director-General)
Background
This agreement arises from Ms Carolina Gonzalez’s complaint against the Community Services Directorate (CSD) lodged with the ACT Human Rights Commission on 30 November 2019 alleging discrimination on the grounds of parent responsibilities in the area of employment. The complaint centred on claims by Ms Gonzalez that she had been treated unfavourably by CSD because of her parental and carer responsibilities, including by being directed to not attend work prior to 7:30am.
The parties attended a conciliation conference over the course of three separate dates on 8 April 2020, 21 May 2020 and 11 June 2020 and without any admissions of liability agree as follows below.
Terms of agreement
Upon signing this agreement,
1. Ms Sabellico will seek advice from the Human Resources area within the Chief Minister, Treasury and Economic Development Directorate (CMTEDD) in relation to assessing and advising how to re-credit personal leave hours taken by Ms Gonzalez as identified in the medical certificates and email correspondence provided to Ms Sabellico on 9 June 2020.
2. Ms Sabellico will provide Ms Gonzalez with a letter acknowledging the difficulties caused by restricting Ms Gonzalez’ work commencement time to 7.30am, including the difficulties experienced by Ms Gonzalez in meeting her parent and carer responsibilities, and the impact this had on her health and wellbeing.
3. The above terms will be completed within one month of the signed date of this agreement.
4. The terms of this agreement are confidential[4] between the parties, except if disclosed to the Fair Work Commission in any proceedings concerning Ms Gonzalez and her employer.[5]
[4] The document may be disclosed where it is being enforced see section 66 Human Rights Commission Act 2005 and section 131(2) of the Evidence Act 2011
[5] Exhibit A1
The agreement was signed by the applicant and Ms Sabellico.
The letter was as follows:
Dear Ms Gonzalez
I am writing in relation to the reconciliation agreement (Ref: CT20070197) reached with the Human Rights Commission between yourself and the Community Services Directorate on 23 July 2020. I apologies for this being a few days late past the expected one month agreed.
Firstly I would like to acknowledge the personal stress, anxiety and difficulties that imposing a strict 7.30am to 3.30pm work day had on you and how it impacted on your ability to facilitate activities with your children as the primary caregiver at home. I understand that an avenue for you to seek ad hoc changes to this schedule was not managed effectively or in a timely way as required to meet you [sic] family needs.
Given this, I have reviewed the records that you provided to me on 9 June 2020 from your doctor and can confirm that the Community Services Directorate will be recrediting back to you a total of 15 days personal leave. I have assessed this to be a reasonable level of leave to be credited back to you and reflects the times that may have been able to be managed by a level of flexibility on an ad hoc basis.
I note however, that this in no way suggests that the process which led to your standard working hours being 7.30am to 3.30pm was in any way inappropriate. Given the circumstances at the time and the need to effectively structure and manage your standard work arrangements these working hours were deemed necessary.
I also note that the terms of this agreement are confidential except if disclosed to the Fair Work Commission in any proceedings you wish to pursue.[6]
Some prior history
[6] Exhibit A1, letter from Ms Sabellico to Ms Gonzalez dated 24 August 2020
In order to understand the agreement, it is useful to explain the nature of the controversy that had arisen between the parties. The applicant had worked in the same area for a number of years. She had worked flexible hours and maintained that doing so was not an issue until early 2019. She has children and says she needed flexibility to combine her role as a carer for them, as well as work. It seems that this flexibility had enabled her to work from as early as 7.00 am and finish 7.5 hours later. A standard day is 7.35 hours according to time sheets, but the hours of attendance are 7.5. Core hours are 8.30am to 4.51pm. It appears that concern was raised as to the accuracy of the time sheets being filled in and the applicant was given a notice, dated 24 January 2019, that there was an investigation about this. This was the subject of a Fair Work application by the applicant. That matter has been heard and the decision reserved. The letter directed her to work core hours of 8.30am to 4.51pm. From the perspective of the applicant, the requirement for core hours was designed to ensure that her attendance might be observed by others, as if she started very early there may be no one else there.
The applicant has moved from that section and the time of concern about these matters has been confined to the year 2019.
The applicant believes that the agreement was obtained with promises by Ms Sabellico that she would ascribe the impact on the applicant, as due to a fault on behalf of the respondent, and that she would credit personal leave of over 240 hours.
The Tribunal was provided with a detailed description of what happened at each of the three conciliation sessions and emails between the HRC officer who was the conciliator and each party.
The Tribunal’s role
The Tribunal has no power to rectify the agreement or to set it aside. The agreement it can give effect to is the one filed with it. There is a limited capacity to have regard to extrinsic evidence as explained in sub-section 66(2) of the HRC Act and section 131 of the Evidence Act 2011. This is subject to the law on construction of contracts as explained famously by Mason J in Codelfa Construction Pty Ltd v State Rail Authority of NSW[7] (Codelfa) and the many cases that have since discussed it.[8]
[7] [1982] HCA 24
[8]See the extensive list of cases in Law Cite referring to this case.
In any event, the agreement was without admission of liability, which in its context must refer to the claim of discrimination. The letter promised would not admit liability.
The letter said what the agreement provided. It was sought for use in the Fair Work case. It seems it would serve no practical purpose to make an order that there be another letter, as that case has been heard. In any event, I cannot see that the letter does not comply with the agreement. There is no power to make an order inconsistent with the agreement.
Likewise, the agreement does not say that the respondent would recredit all the personal leave taken by the applicant during the relevant period. It says:
Ms Sabellico will seek advice from the Human Resources area within the Chief Minister, Treasury and Economic Development Directorate (CMTEDD) in relation to assessing and advising how to re-credit personal leave hours taken by Ms Gonzalez as identified in the medical certificates and email correspondence provided to Ms Sabellico on 9 June 2020.[9]
[9] Exhibit A1
The precise mechanism for how this might occur is not stated. The agreement may have been more felicitously drafted. As explained by Mason J in Codelfa, where there is ambiguity it is permissible by reference to background facts to ascertain the objective meaning. It is also permissible to imply terms necessary to give business efficacy to the promises made.
It is obvious that it is implied that the assessment will be carried out in a reasonable manner and that the leave so assessed would be recredited. What is reasonable must be based on what materials are to be considered, not on some unstated premise.
It seems Ms Sabellico has not recredited all the hours of personal leave that are supported by medical certificates. She says in her letter that it is intended to be a “reasonable level of leave …and reflects the times that may have been able to be managed by a level of flexibility”.[10] This qualification is not articulated in the agreement.
[10] Exhibit A1, letter from Ms Sabellico to Ms Gonzalez dated 24 August 2020
In her statement, Ms Sabellico advances other arguments as to why it was appropriate to not credit all the leave for which there are certificates. One proposition was that the claims may be the subject of a workers compensation claim. This seems inconsistent with paying any attention at all to the medical certificates. Another proposition was that the leave may be caused by stress related to the investigation and that is different from the claim about changed hours. It was argued that the claim is somehow limited to the time the hours again changed to 7.30am to 3pm.
It was also said that a consideration as to how much to allow was to reflect the fact that it was a compromise. Thus, the compromise that the claim for discrimination which may have resulted in a payment of compensation if successful, might again be reduced by way of a further compromise, as determined by the respondent.
I reject these arguments. The compromise was the agreement and there is no room for enabling some further compromise based on no objective criteria. The workers compensation idea is unstated in the agreement and is inconsistent with the process identified. The idea that the hours might be reduced by an undefined judgment to reflect the times that may have been able to be managed by a level of flexibility is also unstated, and is inconsistent with what is stated. It is artificial to suggest that the hours should be reduced because it is possible that the stress was caused by the investigation. Clearly the two are interdependent and the inflexibility was a direct result of it. If any of these unstated ideas were to permit the respondent to allow less than what was assessed as leave, taken for which there were medical certificates, that should have been stated.
It is clear that in order to work out how much to recredit, one must have regard to the existing leave records and the time for which there is a medical certificate and, where obvious, rule out some dates if they are unrelated to the matter at all. This involves a degree of assessment. There is no objective way to attempt the nebulous task of deciding what were “the times that may have been able to be managed by a level of flexibility.”[11]
[11] Exhibit A1, letter from Ms Sabellico to Ms Gonzalez dated 24 August 2020
The agreement clearly means that the respondent will work out what dates for which personal leave was taken relate to the stress, and recredit that time.
In the table prepared by Ms Sabellico, she has stated the total hours of personal leave supported by the certificates is 170.05 hours. If converted to days by dividing by 7.35 this is 23.17 days. In fact, the number of days she has listed is 31 which amounts to 233.35 hours. There is an error in the hours listed for 19 – 21 August and it should be 22.05 hours not 17.55. She has also not included days for which there are certificates, and for which leave was taken. Likewise, not all the days for which there were certificates are shown on the leave records as having been taken. On my calculation, using Ms Sabellico’s table as a base, the following adjustments need to be made to reflect the personal leave taken for stress for which there are certificates:
(a)For the period 10 April 2019 to 26 April 2019, 13 days are certified but only 10 were taken and only 7 allowed by Ms Sabellico. This adds 3 days. There were some other certificates, but they are not reflected in the leave records. I have not found any other adjustments. There may have been other days that were taken for which there were no certificates. Ms Gonzales believes that two such days were acknowledged by Ms Sabellico at the conciliation. The agreement does not enable them to be added.
(b)On my calculations there are a total of 34 days of personal leave supported by certificates. This is 255 hours. Ms Gonzales has nominated different numbers which are less than this. In her submission she puts it at 238.5.
(c)Fifteen days or 110.25 hours have already been allowed. The additional hours that should be recredited on my calculations would be 144.75 but as that is more than is sought, I will reduce it to 128.25 hours.
I have received a reconciliation document from the respondent. I had indicated at the hearing that one would be helpful. This included a highlighted version of the leave records that the applicant had provided. My copy did not have the highlighting and it was pointed out that one period of three days was not claimed. The reason may have been that it referred to a physical illness that did not seem to include stress. When I added up all the green highlighted claim it amounted to more than the amounts claimed. When I added up the hours in the reconciliation it was similar to the amounts I had already calculated. The reconciliation acknowledged that Ms Sabellico had omitted three days by mistake in her table. On any calculation her total in the table is also mistaken.
The reconciliation was accompanied by more submissions. This was not asked for. In courts, such material cannot be provided after the hearing without leave. In any event, they merely summarise the points already made and which I have already dealt with. Ms Gonzales felt compelled to respond. She felt that she had to repeat herself. She did not.
My calculation of the total days in the reconciliation sheet is 32.75, or 240.71 hours. As the totals all amount to more than the claim, I will adhere to the view that I should allow the lesser amount that is claimed, namely 238.5 hours.
The order I make is that the respondent is to recredit to the applicant 238.5 hours of personal leave, being 128.25 hours additional to the 15 days already agreed to be recredited.
………………………………..
Senior Member B Meagher SC
| Date(s) of hearing | 13 January 2021 |
| Applicant: | In person |
| Solicitors for the Respondent: | Ms S Say, ACT Government Solicitor |
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